The current court is headed by Chief Justice John Roberts. Four of the justices are now in their seventies: liberals Ruth Bader Ginsberg and Stephen Breyer, conservative Antonin Scalia and the unpredictable Anthony Kennedy. The likely retirement of Ginsberg (and subsequent presidential appointment) would not change the balance of the court, but the possible retirement of Kennedy might.
Naturally advocates on both sides of the marriage argument are scrambling to influence the court. Even long time observers are hesitant to predict an outcome, but all eyes are on Chief Justice Roberts and Justice Kennedy. Kennedy wrote two of the Court’s most important recent decisions on related matters: Romer v. Evans (1996), where he affirmed the designation of “sexual orientation” as a protected class of people, and Lawrence v. Texas (2003), the decision which struck down the last of the nation’s sodomy laws. However, Kennedy clarified in his Lawrence decision that the Court was not addressing the issue of homosexual “marriage.”
The present case does not involve minors. It does not involve persons who might be injured or coerced or who are situated in relationships where consent might not easily be refused. It does not involve public conduct or prostitution. It does not involve whether the government must give formal recognition to any relationship that homosexual persons seek to enter.
Much of the weight will be on Chief Justice Roberts’ shoulders. Some critics felt he succumbed to political pressure when the Court ruled on the constitutionality of President Obama’s healthcare plan, affirming the package by citing an argument that its proponents never made: that Obamacare was in fact a tax, and therefore constitutional.
Much will rest on how Justice Roberts views the issue in the grand scheme of things. Does he see same-sex marriage as inevitable? He might then see himself as the preserver of the Court’s credibility, and craft an opinion for it. Or does he see traditional marriage as a transcendent institution, larger than both the Court and the State itself? Then he might see himself as the preserver of timeless truths and the protector of an established practice which must weather cultural fads for our society to survive.
Whatever the Court decides in June 2013, the arguments will continue. May traditional marriage advocates hold their ground and make their arguments well. And in the words of the invocation that opens every Supreme Court session, “God save the United States and this honorable court.”
Bishop Harry Jackson is chairman of the High Impact Leadership Coalition and senior pastor of Hope Christian Church in Beltsville, MD, and co-authored, Personal Faith, Public Policy [FrontLine; March 2008] with Tony Perkins, president of the Family Research Council.